Law intended to keep discredited police from testifying draws fire

By NANCY WESTNew Hampshire Sunday News

A law change aimed at making sure prosecutors tell defendants if police officers set to testify against them have credibility problems went into effect virtually unnoticed five months ago, but it is quickly generating controversy as defense attorneys disagree with the state's interpretation.

Deputy Attorney General Ann Rice said she only learned last week from the Sunday News that Rep. Brandon Giuda, R-Chichester, tacked the amended law governing the confidentiality of police personnel files onto unrelated legislation at the 11th hour after it failed to pass as a stand-alone bill.

Giuda, an attorney who lost his seat in Tuesday's election, said he made changes to RSA 105:13-b because he passionately believes people accused of crimes should be informed if police personnel records contain information that could hurt an officer's credibility as a witness.

"I'm a law-and-order guy," Giuda said, "but I've seen abuses by law enforcement."

Giuda said the old law was unconstitutional. Police and prosecutors had been relying on a 2004 memo by former Attorney General Peter Heed in determining what to turn over from police personnel records, Giuda said.

Now, if police and prosecutors fail to disclose such material - which includes lying under oath, theft, fraud or any conduct that could affect an officer's truthfulness - they will be in violation of state law, Giuda said. He would like the law further amended in the future to include penalties if they fail to do so.

People should focus on the fact that "the U.S. Supreme Court ruled 50 years ago and in many subsequent cases that prosecutors and police officers have a duty to disclose this evidence," Giuda said.

"'Laurie' just happened to be one New Hampshire Supreme Court case, but this constitutional right (to those accused of a crime) has been identified since the 1960s. And the fact that some don't know about it now, or are not complying after all this time, is really telling."

In the 1993 case State v. Laurie, a first-degree murder conviction against Carl Laurie was reversed after he was sentenced to life in prison because the state didn't tell the defense that the lead police detective's personnel file contained matters that called into question his truthfulness.

Laurie ultimately pleaded guilty to second-degree murder. Now 62, Laurie remains in State Prison for Men in Concord and will be eligible for parole to freedom in two years.

Giuda's crusade began when a fellow lawmaker told him an unidentified police chief confided that other chiefs were hiding Laurie information and not disclosing it to defendants, something long required by state and federal court rulings.

The amended law says: "Exculpatory evidence in a police personnel file of a police officer who is serving as a witness in any criminal case shall be disclosed to the defendant." It adds that disclosure is required even if a defendant is not found guilty.

Several defense attorneys said they view the change as requiring prosecutors to personally review police personnel files to determine whether they contain Laurie material and define "exculpatory'' to mean all evidence favorable to a defendant. Rice said she defines exculpatory as evidence that could show a defendant is not guilty.

On Wednesday, Rice sent her analysis of the new law to the 10 county attorneys, who along with her office are responsible for maintaining confidential lists of police officers with potential Laurie matters and for disclosing relevant information to defendants.

Rice told them that it appears the law differentiates between exculpatory evidence and evidence in the 1972 U.S. Supreme Court case Giglio v. United States. The high court ordered a new trial in Giglio because the prosecution failed to tell jurors that a witness was promised he wouldn't be prosecuted in exchange for his testimony.

Charles Temple, a University of New Hampshire School of Law professor, said Rice's analysis is wrong and doesn't make sense to him.

"The duty is on the state (police and prosecutors) to disclose Laurie materials," Temple said. "Giglio is an entirely separate issue related to the disclosure of plea deals for state witnesses."

Manchester defense attorney Cathy Green agreed with Temple.

"All evidence that a police officer is not credible is in my view exculpatory," Green said.

Moir started the ball rolling on Laurie's appeal years ago when former Merrimack County Attorney Michael Th. Johnson told him about the credibility issues in the lead detective's personnel file. The state argued unsuccessfully to the state Supreme Court at the time that the information didn't have to be disclosed, Moir said.

"I am sure that members of the defense bar will be filing motions for orders that personnel files be reviewed by the prosecutors themselves, as it is their obligation to provide the information," Moir said.

A man who was convicted of second-degree assault last month in Rockingham County Superior Court has asked Judge N. William Delker for a new trial, arguing that his lawyer, Neil Reardon, didn't tell him a state trooper who testified against him had a Laurie issue for lying under oath at a hearing.

The names of officers on Laurie lists are strictly confidential, but Trooper Derek Holston's name became public when he appealed the 11-day unpaid suspension he received after it was determined he had lied at an administrative license suspension hearing.

Clint Pickering, 29, who was previously convicted in federal court in connection with the 2009 Bank of New England robbery in Windham, was convicted Oct. 1 in state court of running over a Windham police officer's foot during the getaway.

He wants to fire Reardon and get a new trial. Reardon declined comment last week.

"Everything (Reardon) advised me not to do hasn't worked out," Pickering said in a telephone interview from Rockingham County Jail in Brentwood.

In a motion seeking a new trial last week, Pickering wrote: "If defendant knew about Holston's Laurie issue, he would have had a chance to suppress his statement."

Rep. Giuda said he started researching Laurie disclosures at the prompting of Rep. Paul LaCasse, R-Claremont.

"I would have never known except that a good police chief, an honorable chief, pushed the issue with Rep. LaCasse," Giuda said.